Mason City School Dist. v. Bd. of Elec., 2005-1704.

• Decision Date: 10 October 2005
• Docket Number: No. 2005-1704.,2005-1704.
• Parties: MASON CITY SCHOOL DISTRICT et al. v. WARREN COUNTY BOARD OF ELECTIONS et al.
• Court: Ohio Supreme Court

Page 147

840 N.E.2d 147

107 Ohio St.3d 373

2005-Ohio-5363

MASON CITY SCHOOL DISTRICT et al. v. WARREN COUNTY BOARD OF ELECTIONS et al.

No. 2005-1704.

Supreme Court of Ohio.

Submitted September 29, 2005.

Decided October 10, 2005.

Manley Burke, L.P.A., Timothy M. Burke, Cincinnati, and Daniel J. McCarthy, for relators.

Rachel A. Hutzel, Warren County Prosecuting Attorney, and Keith W. Anderson, Assistant Prosecuting Attorney, for respondent Warren County Board of Elections.

Langdon & Shafer, L.L.C., and David R. Langdon; Finney, Stagnaro, Saba & Klusmeier, and Christopher P. Finney, Cincinnati, for respondents John Meyer and Citizens for Accountability and Results in Education.

PER CURIAM.

{¶ 1} This is an expedited election case in which relators seek a writ of prohibition to prevent a board of elections from placing a levy-decrease question on the November 8, 2005 election ballot.

{¶ 2} On May 3, 2005, voters in relator Mason City School District approved a continuing operating levy of 6.94 mills which increases to 9.94 mills over a three-year period.

{¶ 3} On May 24, Citizens for Accountability and Results in Education ("CARE") submitted a petition to respondent Warren County Board of Elections. In the petition, filed pursuant to R.C. 5705.261, CARE sought to submit a proposed decrease of the voter-approved levy to 2 mills to the school-district electorate at the November 8 election. The petition contained 1,344 signatures.

{¶ 4} On May 27, 2005, Mason City School District requested that the board of elections give it notice of any board meeting at which the CARE petition would be considered.

{¶ 5} On August 15, after receiving notice of an August 16 board meeting to determine whether to certify the levy-decrease question presented in the CARE petition to the November 8, 2005 election ballot, relators, the school district and certain district electors, delivered a letter to the board of elections. In their letter, relators urged the board of elections not to certify the petition and advised the board that they were prepared to present evidence at the August 16 meeting that certain signatures should be invalidated. Relators noted that "[a]mong the deficient signatures are numerous examples of one individual signing for themselves and someone else," but they did not specify which signatures were deficient in their August 15 letter.

{¶ 6} On August 16, the board of elections certified the levy-decrease question presented by CARE's petition to the November 8, 2005 election ballot. Nine hundred thirty-eight valid signatures were required for placement of the issue on the ballot, and the board determined that the petition contained 1,098 valid signatures.

{¶ 7} On August 22, relators submitted a written protest to the board of elections in which they challenged the board's certification and the sufficiency of the petition. Relators claimed that the petition contained fewer than the required 938 valid signatures. More specifically, relators claimed that (1) on several part-petitions, it appeared that the same person signed twice, (2) numerous part-petitions contained circulator statements that were invalid because of alterations, (3) a circulator knowingly permitted an unqualified person to sign the petition, (4) one petition contained an incorrect number in the circulator statement, (5) one circulator used misleading tactics to gather signatures, (6) one signer was not qualified because he is not a district resident, and (7) several signers placed incorrect dates on the petition.

{¶ 8} On August 31, the board held a hearing on relators' protest. At the conclusion of the hearing, the board denied the protest and upheld its previous certification of the levy-decrease question to the November 8, 2005 election ballot.

{¶ 9} Twelve days later, on September 12, 2005, relators filed this expedited election case for a writ of prohibition to prevent the board of elections from placing the levy-decrease question on the November 8, 2005 election ballot. We granted CARE's and John Meyer's¹ motion to intervene as additional respondents, and the parties filed evidence and briefs pursuant to the accelerated schedule in S.Ct.Prac.R. X(9). The final brief was filed on September 29.

{¶ 10} This cause is now before us for our consideration of the merits.

{¶ 11} Relators request a writ of prohibition to prevent the board of elections from submitting the levy-decrease issue to the school-district voters at the November 8, 2005 election. Respondents counter that relators' action is barred by laches.

{¶ 12} "We have consistently required relators in election cases to act with the utmost diligence." Blankenship v. Blackwell, 103 Ohio St.3d 567, 2004-Ohio-5596, 817 N.E.2d 382, ¶ 19. "If relators do not act with the required promptness, laches may bar the action for extraordinary relief in an election-related matter." State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, 815 N.E.2d 1107, ¶ 12. "`The elements of laches are (1) unreasonable delay or lapse of time in asserting a right, (2) absence of an excuse for the delay, (3) knowledge, actual or constructive, of the injury or wrong, and (4) prejudice to the other party.'" State ex rel. Ascani v. Stark Cty. Bd. of Elections (1998), 83 Ohio St.3d 490, 493, 700 N.E.2d 1234, quoting State ex rel. Polo v. Cuyahoga Cty. Bd. of Elections (1995), 74 Ohio St.3d 143, 145, 656 N.E.2d 1277.

{¶ 13} Relators failed to act with the requisite diligence in asserting their claims. They knew or should have known about CARE's filing of the levy-decrease petition on May 24. Relators' own evidence includes the May 27 letter of the school district, which establishes that it had actual knowledge of the petition at that early date. Most of relators' objections to the petition, including the alleged alterations of petition circulator statements, the incorrect number of signatures in one circulator statement, and the erroneous petition signature dates, could have been discerned by a routine inspection of the petition when it was filed with the board of elections on May 24.

{¶ 14} Relators did not, however, promptly file a protest challenging the petition. Instead, they waited 90 days from the date CARE filed the levy-decrease petition with the board of elections to submit, on August 22, their detailed written protest of the board's August 16 certification of the petition. Relators then waited an additional 12 days from the August 31 board decision denying their protest to file this expedited election action for a writ of prohibition. "`[W]e have held that a delay as brief as nine days can preclude our consideration of the merits of an expedited election case.'" (Emphasis sic.) State ex rel. Demaline v. Cuyahoga Cty. Bd. of Elections (2000), 90 Ohio St.3d 523, 526-527, 740 N.E.2d 242, quoting State ex rel. Landis v. Morrow Cty. Bd. of Elections (2000), 88 Ohio St.3d 187, 189, 724 N.E.2d 775. Relators' aggregate 102-day delay is considerably lengthier than nine days.

{¶ 15} Relators lack any justifiable excuse for this delay. Notwithstanding relators' argument to the contrary, they did not need to await the board of elections' certification of the petition before they protested the petition. R.C. 3501.39 authorized relators to file their protest with the board of elections, and nothing in that statute prohibited them from submitting their protest before the board certified the petition. See R.C. 3501.39(A) ("The * * * board of elections shall accept any petition described in section 3501.38 of the Revised Code unless one of the following occurs: * * * (2) A written protest against the petition * * *, naming specific objections, is filed, a hearing is held, and a determination is made by the election officials with whom the protest is filed that the petition violates any requirement established by law"); see, also, Ascani, 83 Ohio St.3d at 493, 700 N.E.2d 1234 (prohibition and mandamus to prevent an election on off-track-betting issue were barred by laches because, among other reasons, relator did not file a written statutory protest until ten weeks after the petition was filed, even though he could have determined his objections either before or at the time the petition was filed with the board, which was before the board certified the issue in the petition); State ex rel. Cooker Restaurant Corp. v. Montgomery Cty. Bd. of Elections (1997), 80 Ohio St.3d 302, 308, 686 N.E.2d 238 (laches barred prohibition action to prevent a local-liquor-option election because "[a]lthough the liquor option petitions were circulated and filed with the board in early June, [the protesters] waited until after the board certified the sufficiency and validity of the petitions in August * * * to file their protests").

{¶ 16} Factually as well as legally, relators' argument that they could not have protested anything before the elections board's certification lacks merit. As noted previously, their arguments in their protest and in their claim in this court focus on the validity of...